Citation Nr: 1041044
Decision Date: 11/01/10 Archive Date: 11/12/10
DOCKET NO. 10-00 056A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Sioux Falls,
South Dakota
THE ISSUE
Whether there was clear and unmistakable error (CUE) in an August
2007 Board decision which determined that CUE was not made in a
December 1958 rating decision that denied service connection for
tinea versicolor.
REPRESENTATION
Appellant represented by: Allied Veterans Organization
WITNESSES AT HEARING ON APPEAL
The Veteran and A.F.
ATTORNEY FOR THE BOARD
A.J. Turnipseed, Counsel
INTRODUCTION
The Veteran served on active duty from January 1956 to January
1958.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an August 2008 rating decision from the Department
of Veterans Affairs (VA) Regional Office (RO) above.
In January 2010, the Veteran testified before the undersigned
Veterans Law Judge via video conference. A transcript of the
hearing is associated with the claims file.
FINDINGS OF FACT
1. In a December 1958 rating decision, the New York RO denied
entitlement to service connection for a skin condition showed to
include dermatophytosis of the chest, poison ivy, and tinea
versicolor. The Veteran did not appeal the RO's determination
and the December 1958 rating decision became final.
2. In an August 2007 decision, the Board determined that clear
and unmistakable error (CUE) was not made in the December 1958
rating decision.
3. The Veteran has failed to establish, without debate, that the
correct facts, as they were known at the time of the December
1958 rating decision and August 2007 Board decision, were not
before the Board or that the Board ignored or incorrectly applied
the applicable statutory and regulatory provisions existing at
that time.
CONCLUSIONS OF LAW
1. The December 1958 rating decision is final. 38 U.S.C.A. §
7105 (West 2002 & Supp. 2009); 38 U.S.C.A. §§ 20.302, 20.1103
(2009).
2. The August 2007 Board decision is final. 38 U.S.C.A. § 7104
(West 2002 & Supp. 2009); 38 U.S.C.A. §§ 20.302, 20.1103 (2009).
3. Clear and unmistakable error in the August 2007 Board
decision has not been established. 38 U.S.C.A. § 7105 (West 2002
& Supp. 2009); 38 C.F.R. § 3.105(a) (2009); Fugo v. Brown, 6 Vet.
App. 40, 43 (1993).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Review of the record reveals that, in a rating decision dated
December 1958, the New York RO denied entitlement to service
connection for a skin condition showed to include dermatophytosis
of the chest, poison ivy, and tinea versicolor. The Veteran was
notified of the RO's determination but he did not appeal the
December 1958 rating decision and it became final. See
38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2009).
In January 2004, the Veteran submitted a new claim seeking
service connection for tinea versicolor. While his claim was
initially denied in a July 2004 rating decision, the Sioux Falls
RO issued a rating decision, dated June 2006, which granted
service connection for tinea versicolor, effective January 6,
2004.
The Veteran has disagreed with the effective date assigned for
the grant of service connection for tinea versicolor and he has
attempted to establish that clear and unmistakable error (CUE)
was made in the December 1958 rating decision that denied service
connection for a skin condition. However, in August 2007, after
adjudication of these issues at the RO level, the Board
determined that CUE was not made in the December 1958 rating
decision and that an effective date earlier than January 2004 was
not warranted for the grant of service connection for tinea
versicolor.
The Veteran is now attempting to establish that CUE was made in
the August 2007 Board decision which determined that CUE was not
made in the December 1958 rating decision.
The Court of Appeals for Veterans Claims (hereinafter "the
Court") has delineated a three-prong test to determine whether
clear and unmistakable error is present in a prior determination:
(1) either the correct facts, as they were known at the time,
were not before the adjudicator (i.e., more than a simple
disagreement as to how the facts were weighed or evaluated) or
the statutory or regulatory provisions extant at that time were
incorrectly applied; (2) the error must be "undebatable" and of
the sort "which, had it not been made, would have manifestly
changed the outcome at the time it was made;" and (3) a
determination that there was CUE must be based on the record and
law that existed at the time of the prior adjudication in
question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994), quoting
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).
A determination that there was CUE must be based on the record
and law that existed at the time of the prior adjudication in
question, and not on subsequent determinations of record.
Damrel, supra.
The Court has indicated that clear and unmistakable error is a
very specific and a rare kind of error. It is the kind of error
of fact or of law that when called to the attention of later
reviewers compels the conclusion, to which reasonable minds could
not differ, that the result would have been manifestly different
but for the error. Thus, even where the presence of error is
accepted, if it is not absolutely clear that a different result
would have ensued, the error complained of cannot be, ipso facto,
clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44
(1993).
The essence of a claim of clear and unmistakable error is that it
is a collateral attack on an otherwise final rating decision by a
VA regional office. Smith v. Brown, 35 F. 3d 1516, 1527 (Fed.
Cir. 1994). As such, there is a presumption of validity which
attaches to that final decision, and when such a decision is
collaterally attacked, the presumption becomes even stronger.
See Fugo, supra. Therefore, a claimant who seeks to obtain
retroactive benefits based on clear and unmistakable error has a
much heavier burden than that placed upon a claimant who seeks to
establish prospective entitlement to VA benefits. See Akins v.
Derwinski, 1 Vet. App. 228, 231 (1991). A disagreement with how
the RO evaluated the facts is inadequate to raise a claim of CUE.
Luallen v. Brown, 8 Vet. App. 92, 95 (1995).
For a claim of CUE to be reasonably raised, the claimant must
provide some degree of specificity as to what the alleged error
is, and, unless it is the kind of error that, if true, would be
CUE on its face, persuasive reasons must be given as to why the
result would have been manifestly different but for the alleged
error. Eddy v. Brown, 9 Vet. App. 52, 57 (1996), citing to Fugo
v. Brown, 6 Vet. App. 40, 44 (1993).
A claim that the evidence was not properly weighed or evaluated
cannot constitute CUE, and the allegation of CUE must
specifically state what error occurred and how the outcome would
have been manifestly different. Similarly, broad-brush
allegations of failure to follow the regulations or failure to
give due process, or any other general, non- specific claim of
error cannot satisfy the stringent pleading requirements for the
assertion of CUE. Where a claimant fails to reasonably raise a
CUE claim as set forth above, there is no requirement to address
the merits of the issue. Fugo, 6 Vet. App. at 44-45.
Turning to the merits of this claim, the Veteran has asserted
that the correct facts were not known at the time of the August
2007 Board decision because evidence and facts that were in the
possession and control of the RO were not forwarded to the Board.
In this context, the Veteran has asserted that, after the August
2007 decision, he received evidence which shows he received
treatment for a skin disability in April 1956 and November 1957.
The Veteran argues that the April 1956 records show that he was
hospitalized for 10 days for poison ivy, which is very unusual
given the disability. He also argues that the November 1957
record documents continued treatment for a skin disability, which
shows that his skin disability never resolved without residuals.
The Veteran has argued that, because none of the previous
decisions have acknowledged the evidence showing treatment in
April 1956 and November 1957, the correct facts were not known
and that this evidence would manifestly change the outcome of the
decisions.
At the outset, the Board notes that, at the time of the August
2007 Board decision, the evidentiary record contained treatment
records from April 1956, which showed the Veteran was
hospitalized for several days for treatment of poison ivy, and
November 1957, which showed that he received treatment for
vitiligo that was spreading. Therefore, the Veteran's assertion
that this evidence was not included in the record at the time of
the August 2007 Board decision is without merit.
Review of the record reveals that the April 1956 and November
1957 treatment records were not included in the record at the
time of the December 1958 rating decision; nevertheless, for
reasons discussed below, the Board finds that the correct facts
were known at the time of the December 1958 rating decision and
August 2007 Board decision.
The record reveals that, in determining that CUE was not made in
the December 1958 rating decision, the Board noted that the
service connection claim was denied because the RO determined
that the skin condition that was treated in service resolved
without evidence of any residual disability. The Board noted
that, in making this determination, the RO referred to evidence
showing the Veteran received treatment for tinea versicolor in
October 1957 but that his separation examination did not reveal
any skin abnormality. The Board also noted that, at the time of
the December 1958 rating decision, there was no evidence of
ongoing treatment for tinea versicolor following service, as the
record contained a statement from the Veteran, dated November
1958, wherein he denied receiving treatment since discharge from
service.
Simply stated, the Veteran's own statement in November 1958
provides evidence against a finding that the prior Board decision
was "unmistakably" wrong.
In denying the Veteran's CUE claim, the Board also noted that the
record contained medical evidence showing treatment for a skin
disability following service but, because that evidence was not
of record at the time of the December 1958 rating decision, it
could not be a basis for asserting CUE in that decision.
In sum, the Board, in its August 2007 decision, determined that,
because there was no evidence of record at the time of the
December 1958 rating decision which showed the Veteran suffered a
skin condition after discharge, there was no error of fact, as
there was no showing that the correct facts were not before the
adjudicator, no showing that the RO failed to acknowledge the
facts, and no error of law in the December 1958 rating decision.
The Board notes that the August 2007 Board decision did not
specifically address the evidence of record which documented
treatment the Veteran received for a skin disability in April
1956 and November 1957. However, it is important for the Veteran
to understand that the Board denied the Veteran's CUE claim, not
because there was no evidence of treatment in service, but
because the evidence of record at the time of the December 1958
rating decision supported the RO's finding that there was no
evidence of a chronic skin disability following service. The
August 2007 Board decision noted that, at the time of the
December 1958 rating decision, the evidentiary record contained
evidence of in-service treatment for a skin disability (in
effect, the Board had conceded the fact that the Veteran had
treatment in service for this problem, but found that he did not
have a chronic skin disability as the result of this disability);
therefore, the Board finds that the correct facts that existed at
the time of the December 1958 rating decision were known at the
time of the August 2007 Board decision.
In this regard, the Board notes that, despite the evidence of in-
service treatment, the August 2007 Board decision also noted that
there was no evidence of a skin abnormality at separation from
service and no other evidence of ongoing treatment for tinea
versicolor following service, evidence which indicates that it
cannot be said that the prior decision was undebatably wrong (the
separation examination alone provides evidence against such a
finding as it provides a reasonable basis for a finding that the
Veteran did not have a chronic skin problem following service).
The treatment records from April 1956 and November 1957 do not
provide any evidence or information that establishes the Veteran
manifested a skin disability at separation from service or
following service. Therefore, the Board finds this evidence
would not manifestly change the outcome of the Board's August
2007 decision.
In addition, the Board finds there is no indication that the
August 2007 Board decision ignored or improperly applied the laws
and regulations that existed at the time of the decision.
Indeed, review of the record reveals that the Board considered
the evidence that was included in the record at the time of the
December 1958 rating decision and determined that, given the lack
of evidence showing a skin condition after discharge from
service, there was no error of fact or law made in the decision
to deny service connection for a skin condition. In this
context, the Board notes that service connection has always
required evidence of an in-service event, evidence of a current
disability, and evidence of a nexus between the current
disability and service. See 38 C.F.R. § 3.303.
It appears that the Veteran's primary contention is that the
April 1956 and November 1957 treatment records were not properly
weighed or evaluated by the Board, which is inadequate to support
a finding of CUE. A valid claim of CUE requires more than a
disagreement as to how the facts were weighed or evaluated. See
Crippen v. Brown, 9 Vet. App. 412 (1996). In this case, the
Board applied the facts, as they were known at the time of the
December 1958 rating decision, to the laws and regulations that
existed during that time and, as such, the Board finds that the
August 2007 Board decision was adequately supported by the
evidence then of record and were not undebatably erroneous.
In summary, and based on the foregoing, the Board finds the
Veteran has failed to establish, without debate, that the correct
facts, as they were known at the time of the December 1958 rating
decision, were not before the Board in August 2007 or that the
Board ignored or incorrectly applied the applicable statutory and
regulatory provisions existing at that time. The Board also
finds the Veteran has failed to establish that, but for any such
alleged error, that the outcome of the August 2007 Board decision
would have been different. Given the foregoing, the Board must
conclude that clear and unmistakable error in the August 2007
Board decision has not been established. See 38 C.F.R. §
3.105(a); Luallen, 8 Vet. App. at 95; Fugo, 6 Vet. App. at 43-44.
Accordingly, the Veteran's claim must fail.
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's
duty to notify and assist claimants in substantiating their
claims for VA benefits, as codified in pertinent part at 38
U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §
3.159, 3.326(a) (2009).
Upon receipt of a complete or substantially complete application
for benefits, VA is required to notify the claimant and his
representative of any information, and any medical or lay
evidence, that is necessary to substantiate the claim. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi,
16 Vet. App. 183 (2002). Proper notice from VA must inform the
claimant of any information and evidence not of record (1) that
is necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide. 38
C.F.R. § 3.159(b)(1).
In this case, VCAA notice is not required because the issue
presented involves a motion for review of a prior final decision
on the basis of clear and unmistakable error (CUE). See Livesay
v. Principi, 15 Vet. App. 165, 179 (2001) (en banc).
ORDER
Clear and unmistakable error (CUE) was not made in an August 2007
Board decision.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs